Opinion
January 17, 1973
Appeal from a judgment of the Supreme Court, entered July 22, 1970 in Schenectady County, upon a verdict rendered at a Trial Term in favor of plaintiffs. During the trial of this negligence action, the jury requested that the court allow them to rehear that portion of the testimony of the medical expert, Dr. Ruch, which related to permanency. This testimony was vague and confusing and supports the conclusion that the jury was indeed confused. The court should not have denied the jury's request which, in our view, constituted prejudicial error, and in the interest of justice the verdict should be set aside and a new trial granted. ( Kerner v. Surface Transp. Corp. of N.Y., 266 App. Div. 356, affd. 293 N.Y. 881.) Judgment reversed, on the law and the facts, with costs, and a new trial ordered. Herlihy, P.J., Greenblott, Cooke, Sweeney and Reynolds, JJ., concur.